In Cun v. Café Tiramisu, Case No. A124985 (1st Dist., Div. 2 July 7, 2010) (unpublished), plaintiff ex-employee lost a superior court FLSA action following a de novo Labor Commissioner hearing in which she claimed to have not been paid overtime and to have been denied meal breaks by her employer/alleged joint employer. Because fees incurred in the action were awardable to employer under Labor Code section 98.2(c), employer timely filed a motion for fee after entry of judgment but then sent an amended notice of motion confirming a new hearing date of the motion as ordered by the court, also submitting unredacted versions of invoices filed with the initial moving papers. The trial court granted employer’s motion for fees, awarding it $28,731.25.

To say the least, ex-employee was grumpy about the result, and appealed. Her challenges were not found persuasive.

Although arguing the fee motion was untimely filed, this one did not come close to catching the favor of any appellate eyes. The original noticed motion was timely, with the amended motion merely confirming the court-set hearing date and containing only unredacted versions of information previously filed. Put another way, plaintiff had not demonstrated prejudice.

Then, plaintiff’s attorney complained about the fact that defense counsel charged $370 per hour. However, the trial court properly used the lodestar approach and the disparity in hourly rates is one factor to consider, but was hardly determinative. The defense success could well be attributable in large measure to the high quality of trial work by employer’s counsel. Fee award affirmed.

BONUS: Recipe for Tiramisu. Link to the Wikipedia article on Tiramisu.